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ADDRESS 



OF 



LAWRENCE WASHINGTON 



In Presenting on May 3, 1910, at Montross, Va., the 
Portrait of Judge Bushrod Washington, Associate 
Justice of the Supreme Court of the United States 



ADDRESS 



OF 



LAWRENCE WASHINGTON 



In Presenting on May 3, 1910, at Montross, Va., the 
Portrait of Judge Bushrod Washington, Associate 
Justice of the Supreme Court of the United States 



QIoItnnbuB. C^Ijiii: 

F. B, TOOTHAKER, LAW PRINTER 
1912 



I ^ u "O 






.L 



ADDRESS. 

In appearing before you on behalf of the family of the late 
Colonel John Augustine Washington, of the Confederate States 
Army, to beg the acceptance by Westmoreland county of this por- 
trait of Judge Bushrod Washington, the task of preparing a 
brief sketch of his life to be used on this occasion has been as- 
signed me, and I have consented to it, from a sense of filial duty 
and not from any conceit of my special fitness to perform it. 

The difficulty that confronts a layman in an attempt to portray 
the life of one whose reputation rests on professional achievement 
is so generally understood that I undertake it with much diffi- 
dence, trusting to your very indulgent judgment of my effort, and 
promise to confine myself to a plain statement of unornamented 
fact, much of which I have taken from the writings of Judge 
Binney, Judge Hopkinson and Judge Story, who knew Judge 
Washington intimately, having been closely associated with him 
during the thirty-one years he sat on the bench, and esteemed his 
character fit subject for their literary efforts. 

Born at Bushfield, near the mouth of Nomini, in this county, 
on the fifth of June, 1762, Bushrod Washington was the oldest 
son of that Colonel John Augustine Washington whose wife was 
the daughter of Colonel John Bushrod. His ancestors on both 
sides of the house had taken part in the councils of the Colony 
and of the Church in the Colony from the beginning of their 
history, and though perhaps not wealthy, he enjoyed from in- 
fancy every advantage that social and political prestige could 
give ; and, what stood him in better stead than either or both, the 
careful training of pious, intellectual parents. His early tutelage 
was firm, if not severe. The dominant purpose of parental 
authority in that day was the inculcation of a spirit of reverence. 
His duty to God, his duty to his neighbor, and veneration for his 

3 



parents held higher place in the curriculum of the school in which 
he was reared than the softer policy of obedience from love, and 
whatever modern critics may say of it, its vindication seems se- 
cure in the characters it produced. In the only letter written by 
Bushrod Washington to his parents that I have seen, he ad- 
dresses them as "Honored Sir and Madam," signs himself, "Your 
most dutiful, obedient servant," and the whole tone of this letter, 
written when he was about sixteen, is deferential in the extreme. 

The schoolmaster, too, was a serious proposition. Solomon's 
admonition as to the use of the rod was as strictly followed in 
the private schools, conducted in the homes in the neighborhood, 
as it was at a later period in the public academies, and it was 
under those conditions that young Washington was prepared for 
a course in William and Mary College, where he finished his 
classical education. General Washington's influence secured him 
a position in the law office of Mr. James Wilson, one of Phila- 
delphia's most distinguished lawyers, where he was carefully and 
thoroughly prepared for his chosen profession, and it may not be 
uninteresting to note that it was this Air. Wilson who was later 
appointed an associate justice, and whom Judge Washington suc- 
ceeded on the bench. 

On the completion of his law course, Bushrod Washington 
practiced several years in Westmoreland, which he represented in 
the General Assembly and in the Convention that ratified the 
Federal Constitution, though in neither body did he take a very 
prominent part in debate. Neither does his law^ practice seem to 
have been altogether satisfactory, as we find a letter from him 
to the President intimating a desire to be appointed attorney in 
the Federal Court ; but the reply he received was sufficient to 
convince him that nepotism was not one of his uncle's redeeming 
vices, and he shortly afterwards removed to Alexandria, where 
he was no more encouraged than he had been in his native county. 

\Miether this apparent lack of success was only such as most 
young lawyers experience, or w^as due to the great draught on his 
time, occasioned by a close attention to the private affairs of Gen- 
eral Washington, whose public duties obliged him to rely on him 
more and more as the cares of State increased, does not appear, 



but his stay in Alexandria was short, and he moved on to Rich- 
mond, where he quickly came into lucrative and successful prac- 
tice, was soon recognized as one of the ablest lawyers in the State, 
and was engaged in the most important cases argued before the 
Appellate Court. He had been married, before leaving West- 
moreland, to Miss Anne Blackburn, a daughter of Colonel 
Thomas Blackburn, of Prince William county, who had served 
on the staff of General Washington in the Revolution. The 
health of this lady was never robust, and was greatly impaired 
shortly after her marriage by a shock occasoned by the sudden 
death of her sister under peculiarly distressing circumstances, a 
shock from which she never entirely recovered, and which ren- 
dered her so dependent on her husband that he took little part 
in the social functions for which Richmond was as celebrated 
then, as now. His whole time was devoted to his practice, to 
the work of writing and publishing the decisions of the Court 
of Appeals of Virginia and to a tender and affectionate attention 
to his wife, which he never relaxed until death claimed him, and 
which caused him to be cited by his family, even in my recol- 
lection, as a model of what a husband ought to be. 

Though an ardent Federalist, he had taken little part in poli- 
tics, and it was with much reluctance that he consented to be- 
come a candidate for Congress. Politics in Virginia were run- 
ning high, the Federal party was on its downward road to defeat, 
and sacrifices had to be made. He entered the canvass with all 
his energy and had a fair prospect of election, when he received 
his appointment to the Supreme Bench, which of course withdrew 
him from the field. At the time of his elevation to the bench, 
Washington was only thirty-seven, and it is not unnatural that his 
selection at so early an age for so high an office, should be at- 
tributed, at least in part, to his relationship to his great kinsman, 
and I have searched most diligently for some word or expression 
from General Washington that might be construed as indicative 
of a desire for his nephew's advancement. General Washington's 
letters have been so carefully preserved and so generally pub- 
lished, it seems impossible that such wish, if ever written, should 
remain concealed. Not only so, but the writings of every man 
who was in a position to be of service in procuring his appoint- 

5 



ment have been very carefully collected and published ; but in none 
of them is found even a remote reference to such influence. 

President Adams, who made the appointment, seems to have 
considered the question purely with reference to the public 
interest. Many eminent and distinguished men were urged for 
the position, and the claims and merit of each were carefully 
considered and frankly discussed, but Mr. Adams" mind soon 
became fixed on two men, John Marshall and Bushrod Wash- 
ington ; and however men may have viewed it then, certainly few 
men will now consider it disparagement to be rated second to John 
Marshall. In writing to Mr. Pickering. Secretary of State, Mr. 
Adams says : "General Marshall or Bushrod Washington will 
succeed Judge Wilson. Marshall is first in age, rank and public 
service, probably not second in talents. The character, the merit 
and abilities of Mr. Washington are greatly respected, but I think 
General Marshall ought to be preferred ; of the three envoys [to 
France] the conduct of Marshall alone has been entirely satis- 
factory, and ought to be marked by the most decided approba- 
tion of the public. He has raised the American people in their 
own esteem, and if the influence of truth and justice, reasoti and 
argument is not lost in Europe, he has raised the consideration 
of the United States in that quarter of the world. If Mr. IMar- 
shall should decline, I should next think of Mr. Washington." 

Other names continued to be presented and considered ; but 
in a short time after the letter just quoted. Air. Adams wrote 
again to his Secretary of State : "I have received your letter of 
September 20th, and return you the commission for a judge of 
the Supreme Court, signed, leaving the name and date blank. You 
will fill the blank with the name of Marshall if he will accept it, 
if not, with that of Washington." 

(See JJ'rifiiifjs of John Adams, \o\. A'lII, pages 596. ct scq.) 
Mr. Marshall declined the oflice and Bushrod Washington was 
appointed, and became, says David Paul Brown, "perhaps the 
greatest Nisi Priiis Judge that the world has ever known, without 
even excepting Chief Justice Holt or Lord IMansfield." and adds. 
"This appointment and that which speedily followed, the Chief 



Justiceship of John Marshall, were enough in themselves to, 
secure a lasting obligation of the country to the appointing 
power." 

In regard to his qualifications as a judge, I have preferred to 
cite the opinions of his contemporaries to expressing one of my 
own. Judge Story says : 

"For thirty-one years he held that important station, with a 
constantly increasing reputation and usefulness. Few men, in- 
deed, have possessed higher qualifications for the office, either 
natural or acquired. Few men have left deeper traces, in their 
judicial career, of everything, which a conscientious judge ought 
to propose for his ambition, or his virture, or his glory. His mind 
was solid, rather than brilliant ; sagacious and searching, rather 
than quick and eager ; slow, but not torpid ; steady, but not un- 
yielding ; comprehensive, and at the same time, cautious ; patient 
in inquiry, forcible in conception, clear in reasoning. He was, by 
original temperament, mild, conciliating, and candid ; and yet, he 
was remarkable for an uncompromising firmness. Of him it may 
be truly said, that the fear of man never fell upon him ; it never 
entered into his thought, much less was it seen in his actions. In 
him the love of justice was the ruling passion ; it was the master- 
spring of all his conduct. He made it a matter of conscience to 
discharge every duty with scrupulous fidelity and scrupulous zeal. 
It mattered not, whether the duty were small or great, witnessed 
by the world, or performed in private, everywhere the same dili- 
gence, watchfulness and pervading sense of justice were seen. 
There was about him a tenderness of giving ofifense, and yet a 
fearlessness of consequences in his official character, which I 
scarcely know how to portray. It was a rare combination, which 
added much to the dignity of the bench and made justice itself, 
even when most severe, soften into the moderation of mercy. It 
gained confidence, when it seemed least to seek it. It repressed 
arrogance, by overawing or confounding it." 

Judge Binney, who practiced in his court for twenty years, and 
was afterward associated with him on the bench, says : 

"Without the least apparent effort, he made everybody see at 
first sight, that he was equal to all the duties of the place, cere- 
monial as well as intellectual. His mind was full, his elocution 



free, clear and accurate, his command of all about him indisput- 
able. His learning and acuteness were not only equal to the pro- 
foundest argument, but carried the counsel to depths which they 
had not penetrated ; and he was as cool, self-possessed, and effi- 
cient at a moment of high excitement at the bar. or in the people, 
as if the nerves of fear had been taken out of his brain by the 
roots. 

"Judge Washington was an accomplished equity lawyer when 
he came to the bench, his practice in A'irginia having been chiefly 
in chancery, and he was thoroughly grounded in the common law ; 
but he had not been previously familiar with commercial law ; and 
he had had no experience at all. either in the superintendence or 
the practice of jury trials at Nisi Priits. after that fashion which 
prevails in Pennsylvania, and in some of the Eastern and North- 
ern States, as well as in England, where the judge repeats and 
reviews the evidence in his charge to the jury, not unfrequently 
shows them the learning of his mind in regard to the facts, and 
directs them in matter of law. And nevertheless, it was in these 
two departments or provinces — commercial law and Nisi Prius 
practice and administration, particularly the latter, — that he was 
eminent from the outset, and in a short time became, in my 
apprehension, as accomplished Nisi Prius judge as ever lived. 
I have never seen a judge who in this specialty equalled him. I 
cannot conceive a better. Judging of Lord Mansfield's great 
powers at Nisi Priits, by the accounts which have been trans- 
mitted to us. I do not believe that even he surpassed Judge W'ash- 
ington. 

"One fundamental faculty for a Nisi Prius judge he possessed 
in absolute perfection, it was attention. Attention sprang from 
his head, full grown, at least as trul\- as Minerva from Jupiter's, 
or he had trained it up in infancy in some way of his own. He 
possessed the power, as I have said before, in absolute perfection. 

"In addition to this, he had great quiekness and accuracy of 
apprehension. Washington never interrogated a witness, nor 
asked counsel to repeat what he had said, and but rarely called for 
documents after they had been read to him. He caught the im- 
portant parts in a moment, and made a reliable note of them, 
before the counsel was ready to proceed with further testimony. 

8 



"He liad a most ready command of precise and expressive lan- 
guage, to narrate facts or to communicate thoughts, and a poiver 
of logical arrangement in his statements and reasonings, which 
presented everything to the jury in the very terms and order that 
were fittest, both for the jury and for the counsel, to exhibit the 
whole case. A jury never came back to ask what he meant, and 
counsel were never at a loss to state the very point of their objec- 
tion to his opinion or charge, if they had any objection to make. 

"Few, very few men," says Judge Hopkinson, "who have been 
distinguished on the judgment seat of the law, have possessed 
higher qualifications, natural and acquired, for the station, than 
Judge Washington. And this is equally true, whether we look to 
the illustrious individuals who have graced the courts of the 
United States, or extended the view to the country from which so 
much of our judicial knowledge has been derived. He was wise, 
as well as learned ; sagacious and searching in the pursuit and 
discovery of truth, and faithful to it beyond the touch of corrup- 
tion, or the diflidence of fear ; he was cautious, considerate and 
slow in forming a judgment, and steady, but not obstinate, in his 
adherence to it. No man was more willing to listen to an argu- 
ment against his opinion ; to receive it with candor, or to yield to 
it with more manliness, if it convinced him of his error. He was 
too honest and too proud, to surrender himself to the undue in- 
fluence of any man, the menaces of any power, or the seductions 
of any interest ; but he was as tractable as humility, to the force of 
truth ; as obedient as filial duty, to the voice of reason. When he 
gave up an opinion, he did it not grudgingly, or with reluctant 
qualifications and saving explanations ; it was abandoned at once, 
and he rejoiced more than any one, at his escape from it. It is 
only a mind conscious of its strength, and governed by the highest 
principles of integrity, that can make such sacrifices, not only 
without any feeling of humiliation, but with unaffected satisfac- 
tion." 

In any account of Judge Washington a review of his decisions 
is of course what most interest the profession, but such review 
most briefly stated would occupy more time than could be allowed 
on an occasion like this, and I pass at once to some of the less 
conspicuous incidents of his life. 

9 



It is entirely unnecessary to rehearse before this audience the 
efforts made by the Virginia colonists to prevent the shipment of 
African slaves to her shore ; you know, too, that when a power 
too strong for the colony to resist, had fastened the institution 
upon her, the wisest statesmen within her borders would have 
welcomed and contributed to its abolishment by any plan not 
threatening greater evils ; and on this question Judge Washington 
did not differ from the majority of the gentlemen of his day and 
class. He had witnessed and on him had fallen the heaviest of the 
burden of General Washington's unfortunate experiment in 
emancipation ; he had seen the quiet and contented slave trans- 
formed by an act of intended philanthropy into a savage menace 
to the neighborhood ; he had seen its demoralizing effect on those 
still held in bondage, and in company with Judge Marshall had 
been hurried from his official duties to quell a mutiny among the 
slaves at Mount Vernon, only arriving in time to prevent serious 
trouble. How far this insubordination had been brought about 
by the incendiary teaching of emissaries of Northern abolition 
societies, who, under the pretense of patriotic interest in the tomb 
and the late home of the first President, were constantly visiting 
the place, can not be certainly known, but that the influence of 
those people transmitted through these free negroes to his slaves. 
had practically destroyed the value of Judge Washington's prop- 
erty lying in that part of the State is shown by a letter written in 
1821 to the editor of Nile's Register in reply to attacks that had 
been made on him as President of the American Colonization 
Society for having sold over fifty of the negroes. The letter is 
too long to be copied in full, but the paragraphs dealing with this 
particular phase of the question will, I hope, prove interesting. 
After showing how, by the purchase of a number of these 
negroes, to prevent the separation of families, the sale had re- 
sulted in little profit to him, he says : 

"I had struggled for about twenty years to pay the expenses 
of my farm and to afford a comfortable support for those who 
cultivated it, from the produce of their labor. In this way to 
have balanced that account would have satisfied me, but I always 
had to draw upon my other resources for those objects, and I 



10 



would state upon my best judgment that the produce of the farm 
has in general fallen short of its support from $500 to $1000 
annually. To the best of my recollection I have during the above 
period (two years excepted) had to buy corn for the negroes, for 
which I have sometimes paid five, six and seven dollars a barrel. 
Last year I commenced the purchase of this article for ninety 
negroes in the month of May and so continued to the end of it. 

"The insubordination of my negroes and their total disregard 
of all authority, rendered them more than useless to me. Southern 
gentlemen understand, and well know how to appreciate the force 
of this motve, and I, therefore, forbear to enlarge upon it. 

"But if it should be asked, as it well may be, why this temper 
was more observable at Mount Vernon than upon other planta- 
tions in the neighborhood, I answer that, that place has at times 
been visited by some unworthy persons, who have condescended 
to hold conversations with my negroes and to impress upon their 
minds the belief that as the nephew of General Washington, or as 
President of the Colonization Society, or for other reasons, I 
could not hold them in bondage, and particularly that they would 
be free at my death. That such conversations have passed I have 
evidence entirely satisfactory to myself ; and that such impres- 
sions had been made on the minds of the negroes was imparted 
to me by a friend, who had no reason to doubt the fact. In con- 
sequence of information so truly alarming, I called the negroes 
together in March last, and, after stating to them what I had 
heard, and that they had been deceived by those who had neither 
their or my good in view, I assured them most solemnly that I 
had no intention to give freedom to any of them, and that nothing 
but a voluntary act of mine could make them so. That disap- 
pointment caused by this declaration should lead to consequences 
which followed was to be expected." 

There remained then, no alternative, however distasteful, but 
the sale of his negroes. Emancipation without deportation w^as 
not to be thought of, and he had already gone as far in that direc- 
tion as prudence permitted, and was at that time contributing to 
the support of the most promising of his servants whom he had 
liberated and sent to Liberia. 



11 



Judge Washington's connection with the Colonization Society 
deserves more notice than it is possible to give it in a sketch of 
this character. He was its first president, and whatever of suc- 
cess it enjoyed, was due in no small measure to his labor and 
interest and to the assistance and confidence which his connection 
with it secured. What the work of this society would have 
amounted to but for the Civil War, is a matter of speculation ; 
what it has amounted to is best told perhaps by C. H. J. Taylor, 
who was appointed by President Cleveland minister to that 
country, and who on his return to the United States, painted a 
pathetic picture of reversion to type. 

Judge and Mrs. Washington had no children, and the condi- 
tion of her health rendered impossible a continuance of the 
hospitality that had made Mount Vernon famous during the life 
of its previous owner. A dinner now and then to members of 
the Supreme Court, and that informal visiting that constituted 
one of the charms of X'irginia society, was all that Mrs. Wash- 
ington's strength permitted, and even that was much interrupted 
by their frequent absences on account of official duties. Mrs. 
Washington always accompanied her husband and insisted on 
traveling in their private carriage, in which they made their regu- 
lar journeys to Philadelphia and Trenton. The fall term of 1829 
was attended with much difficulty. He managed to sit through 
the session at Trenton and came back to Philadelphia, hoping to 
perform his duties there, but grew steadily worse and died on 
the 26th of November, 1829, his wife dying the following day. 

One short incident as illustrating his attitude toward his slaves, 
and I am done. 

The incident was related to me by a niece of Mrs. Washington, 
who was a constant visitor at Mount \'ernon, and now living, at 
the age of nearly one hundred years. 

An old negro, who w^as a kind of under gardener, had been en- 
couraged by the promise of a dram, to catch a rat that had done 
much damage and destroyed some of the finest bulbs in the con- 
servatory. The old negro had long pitted his cunning against that 
of the rat, and had devised many traps for its capture, but his 
efforts had been unrewarded, when one dav, while the familv was 



12 



at dinner, there came a knock at the back door, which was re- 
sponded to by the servant waiting on the table. Returning to the 
ling room and announcing no visitor, the Judge asked who had 
knocked. The servant rephed it was nobody but old Joe with a 
rat and that he had sent him away. 

"Go and bring him back," said the Judge, and calling for a 
suitable cup he poured out the promised dram and himself took it 
to the door, accompanying its presentation to his old negro with 
highly appreciative praise. , ^ a 

Such Mr President, was the man most inadequately portrayed, 
for whose portrait we beg a place among the portraits of the 
other illustrious sons of this country, and it is no disparagement to 
the greatest among them to have it placed there. He represented 
what they stood for. His regard for truth and justice was as 
great as was that of his greater kinsman, and his devotion to duty 
as sublime as was that of the immortal Lee. 



13 



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